Blog - Month: July 2024
EEOC Issues Updated Workplace Harassment Guidance
For the first time in 25 years, the Equal Employment Opportunity Commission has issued updated workplace harassment guidance for employers, increasing possible exposure to employee-initiated lawsuits.
The new guidance expands employee protections to include harassment based on sexual orientation and gender identity, as well as taking into account that harassment can be perpetrated virtually via text messaging, e-mails and other online or app-based mediums.
These are federal guidelines, meaning that they open a new avenue for potential employment practices liability exposure. Employers should understand this new guidance to ensure they don’t run afoul of the law and risk being sued by a worker.
Sex-based harassment
The new guidance expands the definition of sex-based harassment to include harassment related to breastfeeding, morning sickness, contraception and the decision to obtain — or not obtain — an abortion.
It also expands protections to include harassment based on sexual orientation and gender identity. An example of the latter would be an employer intentionally and repeatedly using a name or pronoun that is inconsistent with the worker’s gender identity, or denying access to bathrooms that are consistent with their identity.
Virtual harassment
The guidance notes that harassment does not have to be perpetrated in person to be illegal.
It states that harassment can also occur in the “virtual work environment,” such as through the company e-mail system, electronic bulletin boards, instant message systems, videoconferencing technology, intranet or official social media accounts.
The EEOC stated that while off-duty offensive social media posts sent on work systems generally don’t constitute harassment, they may if they impact the workplace, such as if the postings are directed at a particular employee or employer and are referenced at work.
The agency also stated that even if offensive material is sent while off-duty on non-work systems, like using personal phones or tablets to text harassing messages or making derogatory posts on their own social media accounts, it could be considered illegal.
The takeaway
The EEOC has designated workplace harassment as an enforcement priority.
Employers should update their anti-harassment policies and procedures in their employee handbooks to reflect the changes to EEOC guidance. Managers and supervisors should be trained in the new guidance as well.
The EEOC recommends that anti-harassment policies, at a minimum:
- Define what conduct is prohibited, and be widely disseminated;
- Be comprehensible to workers, including those whom the employer has reason to believe might have barriers to comprehension, such as limited literacy skills or proficiency in English;
- Require that supervisors report harassment when they are aware of it;
- Offer multiple ways to report harassment;
- Identify points of contact to whom reports of harassment should be made, including contact information; and
- Explain the employer’s complaint process, including the anti-retaliation and confidentiality protections.
OSHA Updates HazCom Standard
Changes are once again coming to Fed-OSHA’s Hazardous Communications Standard, which governs the handling of chemicals and other dangerous substances.
OSHA’s final rule, which takes effect July 19, 2024, will bring the standard in line with the latest update to the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals.
The update revises criteria for the classification of certain health and physical hazards, as well as updating labeling requirements and safety data sheets (SDSs), among other changes.
OSHA said it had updated the HazCom standard “to better protect workers by improving the amount and quality of information on labels and safety data sheets and allow workers and first responders to react more quickly in an emergency.”
Affected firms will have to update any alternative workplace labeling as well as their HazCom program, and provide any additional employee training for newly identified physical, health or other hazards.
Compliance deadlines are staggered:
First: Chemical manufacturers, importers or distributors evaluating substances will have to comply by Jan. 19, 2026, while those that evaluate mixtures will have to comply by July 19, 2027.
Second: Other employers will have to comply six months after those dates: July 19, 2026 for those that handle, store or use substances, and Jan. 19, 2028 for mixtures.
It’s important for employers to stay up to date on the HazCom standard to protect their workers. Labels and SDSs are often the first indication to a worker that they are handling a hazardous chemical, so it is imperative that they be as accurate and complete as possible.
What the rule does
The new rule ensures that OSHA’s HazCom standard jibes with the Global Harmonized System, which is used in most developed and many developing countries around the world. It provides consistent definitions of hazards, specific criteria for labels, and a specific format for safety SDSs.
It should be noted that the new classification criteria only affect SDSs and labels for certain products (aerosols, desensitized explosives and flammable gases). If your firm handles any of these you will have to ensure that your labels and SDSs for select hazardous chemicals are updated accordingly.
Some of the highlights of the rule:
Labeling — It updates labeling requirements for certain very small containers and bulk containers to ensure the labels are comprehensive and readable.
Manufacturers must also only provide the updated label for each individual container with each shipment once the product reaches its customer. Warehousing employees will not be required to open sealed pallets and boxes of containers to relabel them or repackage the product in preprinted bags.
Flammable gas addition — The flammable gas hazard class gets a new hazard class (desensitized explosives), as well as new hazard categories:
- Unstable gases in the Flammable Gases class
- Pyrophoric gases in the Flammable Gases class, and
- Nonflammable aerosols in the Aerosols class.
New and revised definitions — There are a number of definitions that are being revised or which are new altogether.
Employer takeaway
HazCom citations are one of the most common citations that OSHA issues. If your operations handle chemicals, you should take the opportunity now to review your HazCom programs and plan for compliance by the deadline that affects your company.
Light Duty Can Reduce Workers’ Comp Claims Costs
After an employee is injured on the job, recuperation times can vary, but every day they are away from work, the claim cost increases and your productivity suffers.
By implementing a program that offers a good incentive to return, you can reduce the risk of paying more benefits than necessary.
Recent research shows that employers lose about 80 million workdays annually due to workplace injuries or illnesses. The number of employees who remain away from work for more than seven days because of injuries or illnesses stretches into the millions.
This means that employers are left to deal with the high cost of workers’ compensation premiums, lost productivity and disability benefits. But, by creating a special incentive program, you can greatly reduce these costs.
Light duties
When an injured worker is off work and healing, a physician will regularly examine them. These exams will in part determine whether the worker is ready to return to their previous tasks.
In some cases, it may be possible to get the individual back to work sooner with light duties.
For example, consider a worker who is injured while lifting boxes in a warehouse. The attending physician will be examining the employee to determine whether he or she is ready to lift boxes again.
If the employee has a back injury, it could be several weeks before they can return to work.
But, if the employer offered the worker an easy temporary job in the office, they may be able to return much sooner. To make something like this happen, a light-duty program must be put in place. A solid program should have the following features:
- Addresses environmental, physical, knowledge and emotional factors that may prevent employees from returning to work.
- Makes the transition to full-time work easier.
- Focuses on employees’ abilities instead of their disabilities.
Light-duty programs improve employee morale by increasing incentives for returning to work and staying safe. For the employer, they maintain productivity by lowering the number of lost work days.
These programs help speed up employees’ recovery processes. Recent research shows that 50% of workers who stay out of work for more than six months will never return to their jobs. If they stay out for more than one year, the likelihood of returning to work is about 10%.
Getting employees back to work as quickly as possible is the best way to bring about feelings of being part of the team. It also lessens the financial impact on the employee and their family.
The elements of a solid plan
To make sure a program is as comprehensive as possible, include the following elements:
- Performing meaningful tasks instead of simple busy work.
- Coordination with the doctor about work restrictions.
- Alternative work assignments that benefit the employer and employee.
- Descriptions of duties the injured employee must perform.
- Provisions for situations where employees may have to take additional medical leave time after returning to work.
- Stated conditions and time parameters for temporary assignments.
Benefits of return-to-work programs
- Making it easier to keep valuable employees, who are productive while recovering.
- Making communication happen between employees, employers and doctors, instead of between employees and their doctors.
- Making it difficult for employees to stay out of work longer than necessary.
- Reducing the need to recruit, hire and train new workers.
- Reducing the cost of workers’ comp disability payments to injured workers.
- Showing your concern for the injured employee’s health.
- Reducing claims costs, which can help reduce your rates.
The takeaway
Workers’ compensation consumes a sizable portion of overall personnel costs. A solid return program can reduce those costs, including intangible ones, like the absence of an experienced worker. Also, it is good for employee morale.
Newsom, Business Groups Agree on PAGA Reforms
California Governor Gavin Newsom, legislators and business groups have struck an agreement to reform a law that has become a costly thorn in the side of employers operating in the state, the Private Attorneys General Act.
The deal averts a showdown over a business-backed initiative slated to be on the November ballot that would repeal the law outright. The reform legislation seeks to keep the law intact while limiting frivolous litigation by allowing employers to make things right after a PAGA action has been filed.
PAGA allows workers who allege they have suffered labor violations, like unpaid overtime or being denied mandatory meal and rest breaks, to file suit against their employers rather than the more typical route of filing a claim with the state Department of Labor Standards Enforcement (DLSE).
The law essentially allows employees, represented by private attorneys, to stand in for the state and all their co-workers in suing their employer.
One reason workers pursue PAGA claims is the tremendous backlog that the DLSE faces, and they do so in the belief that the claim will be handled more quickly. However, a report by the Fix PAGA Coalition found that workers filing claims directly with the DLSE wait fewer than 10 months on average for their awards, compared to 23 months for PAGA court case awards.
PAGA settlements have exploded in recent years, jumping 100% between 2016 and 2022, according to a study by the California Chamber of Commerce.
Proceeds from settlements are split 25% with the employee who filed the case and the rest with the state, which collected more than $200 million in civil penalties during the 2022-2023 fiscal year.
The Fix PAGA Coalition’s report found that non-profits, small businesses and other employers have paid out nearly $10 billion in PAGA case awards since 2013, with attorneys receiving the far bigger portion of the settlements and employees consistently receiving only minimal payments.
Backers of the PAGA ballot initiative agreed to withdraw their measure if the legislation is passed and signed into law, which it was on July 1.
Highlights of the agreement
The governor’s announcement highlighted that the measure would:
Redefine ‘standing’ — It would require workers to personally experience the alleged violations brought in a claim.
Cure provisions – It would expand the list of Labor Code violations that can be cured before a PAGA action commences, which could allow employers to avoid lawsuits by making employees whole after receiving notice of alleged violations.
Limiting claims – It would codify a court’s ability to limit the scope of claims presented at trial to better manage the complaint.
Reforms penalty structure — It would cap penalties on employers that quickly fix policies and/or practices to make workers whole after they receive a notice of a PAGA action. It also caps penalties on employers that proactively comply with the Labor Code before receiving a PAGA notice.
Workers larger share of awards – It would increase the portion of awards allocated to employees to 35% from 25%.
Newsom agreed to pursue a trailer bill to provide funding for the Labor Department to expedite hiring and filling vacancies.
The takeaway
Jennifer Barrera, CEO of the California Chamber of Commerce, said in a prepared statement: “This package provides meaningful reforms that ensure workers continue to have a strong vehicle to get labor claims resolved, while also limiting the frivolous litigation that has cost employers billions without benefiting workers.”
Legislators will have to move quickly to pass the measure into law by the June 27 deadline. While the legislation will not eliminate PAGA, all sides of the agreement predict it would go a long way towards reducing frivolous claims.
Changes Coming to Electronics, Dual-Wage Class Codes
California Insurance Commissioner Ricardo Lara on May 31 approved all of the Workers’ Compensation Insurance Rating Bureau’s recommended changes to class codes for some electronics manufacturing sectors, as well as increases to the wage thresholds for construction industry dual classifications.
The following changes will take effect for policies incepting on or after Sept. 1, 2024:
Electronics manufacturing industry
One of the changes links two more classes to the 8874 companion classification, which was created in September 2022 to cover certain low-risk classes in the electronics industry group.
Currently, 8874 is a companion class that covers payroll for lower-risk jobs in hardware and software design and development, computer-aided design, clerical and outside sales operations for two electronics industry classes:
- 3681 (manufacturing operations for electronic instruments, computer peripherals, telecommunications equipment), and
- 4112 (integrated circuit and semiconductor wafer manufacturing).
Starting Sept. 1, similar low-risk white-collar personnel currently assigned to class 3572 (medical instrument manufacturing) and 3682 (non-electric instrument manufacturing) will be linked to the 8874 companion class code.
Dual-wage increases
The thresholds that separate high- and low-wage earners in 16 dual-wage construction classes are also increasing Sept. 1.
These class codes have vastly different pure premium rates for workers above and below a certain threshold as the lower-wage workers (often who are less experienced) have historically filed more workers’ comp claims. Rates for lower-wage workers are often double the rates for higher-wage workers.
The following illustrates the changes:
| Classification | Current threshold | Threshold starting 9/1 |
| 5207/5028 Masonry | $32 | $35 |
| 5190/5140 Electrical Wiring | $34 | $36 |
| 5183/5187 Plumbing | $31 | $32 |
| 5185/5186 Automatic Sprinkler Installation | $32 | $33 |
| 5201/5205 Concrete or Cement Work | $32 | $33 |
| 5403/5432 Carpentry | $39 | $41 |
| 5446/5447 Wallboard Installation | $38 | $41 |
| 5467/5470 Glaziers | $36 | $39 |
| 5474/5482 Painting/ Waterproofing | $31 | $32 |
| 5484/5485 Plastering or Stucco Work | $36 | $38 |
| 5538/5542 Sheet Metal Work | $29 | $33 |
| 5552/5553 Roofing | $29 | $31 |
| 5632/5633 Steel Framing | $39 | $41 |
| 6218/6220 Excavation/Grading/Land Leveling | $38 | $40 |
| 6307/6308 Sewer Construction | $38 | $40 |
| 6315/6316 Water/Gas Mains | $38 | $40 |